Supreme Court begins hearings on health care law

Meredith Cohn, The Baltimore Sun

It was 1942 when the U.S. Supreme Court decided that Congress could influence wheat prices by telling farmers how much they could grow.

So the idea that Congress mandate that all Americans buy health insurance isn't that far-fetched and has legal precedent, argues Leslie Meltzer Henry, assistant professor of law at the University of Maryland and associate faculty member at Johns Hopkins' Berman Institute of Bioethics.

Henry spoke to a room full of Johns Hopkins faculty, students and visitors Monday as the Supreme Court began three days of oral arguments in Washington on the Affordable Care Act, President Barack Obama's landmark health care law.

Henry is one of many lawyers, bioethicists, politicians and ordinary Americans who have a strong belief in how the court will — or should — rule on the case. It entails a handful of constitutional questions but centers on whether individuals can be forced to buy anything. The case has broad implications for $2.6 trillion industry, which represents nearly one-fifth of the gross domestic product

The Affordable Care Act "is consistent with long-standing precedent allowing Congress to tackle regulatory problems affecting commerce that states are ill-suited to solve on their own," Henry said.

The arguments before the Supreme Court on Monday focused narrowly on whether the court could even consider the law now, since the mandate and other provisions do not go into effect until 2014. If the penalty for not buying coverage is considered a tax, then no one has standing to challenge it because no one has yet paid it.

The justices seemed skeptical that the penalty was a tax and seemed inclined to decide the case rather than defer it for years.

"Here, they did not use that word tax," said Justice Stephen Breyer, one of the court's liberals, referring the law's authors in Congress.

Monday's 90 minutes of arguments are among a historic six hours allotted to the health care law over three days. Nine justices, five appointed by Republican presidents and four by Democratic presidents, are expected to rule by late June.

The law's challengers argue that Congress should not force Americans to buy a product they have decided they don't want. One protester outside the courthouse across from the U.S. Capitol said, "The day hasn't come when the government can force me to buy a damn thing."

But supporters nearby chanted "We love Obamacare," embracing the term used derisively by opponents. People lined up 72 hours in advance to get one of the limited number of public seats in the courtroom for the arguments.

The law has brought angry denunciation from Republican presidential candidates and fellow Republican lawmakers, who vow repeal of Obama's top domestic achievement. They say it's not just an unwarranted intrusion in Americans' lives, but also a financial burden on businesses, individuals and states.

"I despise it," said Sen. David Brinkley, a Frederick County Republican who is running for Congress in the 6th District. "We see what happens to monopolies that are organized by the government, such as the post office."

Polls show that Americans are split on the question, as are lower courts, which have issued mixed rulings on challenges from 26 state attorneys-general who say Congress overreached with the law.

Though some Republican leaders in Maryland and residents of the state don't support the law, the state's Democratic leaders sided with the Obama administration's contention that everyone uses health care at some point and the uninsured burden the overall system.

Maryland has also been among the most aggressive states in implementing the law. Officials have added many individuals to the state's Medicaid rolls early and ensured that some elements of the federal law have gone into effect, such as young adults being allowed to stay on their parents' policies until they are 26, giving seniors prescription drug rebate checks and issuing small businesses tax credits for insurance.

The mandate to buy coverage doesn't go into effect until 2014, when all states are required to operate exchanges where the uninsured can buy coverage.

The framework for Maryland's exchange has already been created, and supporters say its impact on the local economy, as well as individuals' health, is certain. About 700,000 Marylanders, or 13 percent, are uninsured, and officials expect at least half to gain some kind of coverage. That would save the state about $1 billion over a decade.

Without the law, uncompensated care in the state's hospitals, passed onto everyone else via insurance premiums, will continue to grow, said Lt. Gov. Anthony G. Brown, who is overseeing the reform effort in Maryland. Nationally, it's estimated that families pay an average of $1,000 more a year to compensate for those who seek emergency care and don't pay.

"The Affordable Care Act has provided a tremendous opportunity to expand access, improve quality and reduce the cost of health care for all Marylanders, but a key driver of rising costs is the number of individuals who do not have insurance coverage, putting the burden of their care on all taxpayers," Brown said in an email. "Encouraging individual responsibility and connecting people to affordable private health insurance will help bend the curve of rising health costs and ensure a more stable health care system for everyone. I believe the Affordable Care Act and its provisions are constitutional, and I welcome this week's consideration by the Supreme Court."

Back at Hopkins, Henry argued that Congress can tackle this problem because individual actions are affecting the economy as a whole and states can't solve the issue on their own.

Seven states in recent years have tried by ordering insurers to cover everyone, despite pre-existing conditions. But they did not order the healthy to buy coverage before they became sick, which would have spread the risk. Many insurers chose to stop offering policies in those states.

Even Massachusetts, which did include an individual mandate in its health care law, doesn't provide a usable model for other states, Henry said. She said the state was wealthier and healthier than most other states and had a relatively low number of uninsured.